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EPA Proposes New PFAS Requirements Under TSCA

The Environmental Protection Agency (“EPA”) has announced it is taking three actions with respect to per- and polyfluoroalkyl substances (“PFAS”) under the Toxic Substances Control Act (“TSCA”):  (1) proposing a rule that is designed to enact reporting requirements for PFAS products that are manufactured or imported in the United States; (2) eliminating guidance that EPA asserts weakened the Significant New Use Rule (“SNUR”) regarding long-chain PFAS; and (3) publishing a final rule that incorporates three additional PFAS substances into the Toxics Release Inventory (“TRI”).

Recordkeeping and Reporting Requirements

EPA’s proposed recordkeeping requirements, published on June 10, 2021, would require that certain businesses to electronically report information to EPA regarding any PFAS substances (see pages 18-21 of the linked proposal for the complete list).  Significantly, the definition of “PFAS substances” is “any chemical substance or mixture that structurally contains the unit R-(CF2)-C(F)(R’)R’’. Both the CF2 and CF moieties are saturated carbons. None

State-by-State Regulation of PFAS Substances in Drinking Water

In the absence of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, many states have embarked on the process of regulating PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying stringency which presents significant operational and compliance challenges to impacted industries.  This client alert surveys the maximum contaminant levels (“MCLs”), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed at the state level.

1. Federal Health Recommendations and Advisory

The United States Environmental Protection Agency (“EPA”) has issued a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  EPA’s Health Advisory is non-enforceable and non-regulatory, but is intended to provide technical information to state agencies and other public health officials on health effects, analytical methodologies,

New CDC Guidance: The Vaccinated Are Free(r)

On May 13th the Centers for Disease Control and Prevention (“CDC”) announced that “[f]ully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

In the wake of the CDC announcement, states and other agencies have had varied reactions.  Some have lifted face covering mandates while others have advocated caution, further underscoring the need for businesses to review state and local requirements.  For example, on May 17th the Occupational Safety and Health Administration (“OSHA”) acknowledged the new guidance from the CDC and indicated that it would update its guidelines accordingly, but in the meantime, indicated that businesses should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The reduced restrictions are both a positive indicator for the Country’s overall path to recovery, and a

COVID-19: Illinois Transitions to the “Bridge Phase” on May 14th

Governor Pritzker has announced that on Friday, May 14, 2021, the state of Illinois will enter the “Bridge Phase” of the Restore Illinois Plan, which will increase occupancy limits for many industries.  In addition, Illinoisans who can provide proof of full vaccination – defined as 14 days after receiving a final vaccine dose – or a negative COVID-19 test 1-3 days prior to an event do not count against a business’ capacity limits.

The Governor and Department of Public Health determined that the transition to the Bridge Phase was warranted based on the state reaching 70% vaccination of all residents 65 years and older, and so long as COVID-19 metrics remain stable over a 28-day monitoring period.

New Occupancy Limits for Specific Industry Sectors


  • The changes only impact standing areas; seating area requirements have not changed.
  • 30% capacity indoors and 50% capacity outdoors (increase from 25% capacity

New Toxic Chemical Regulations: Is Your Supply Chain Impacted?

There are new chemical regulations on the block, and your company’s supply chain might be implicated. These rules prohibit both the manufacturing of certain bioaccumulating chemicals as well as the distribution of products that contain these chemicals. Read on for a high-level summary of the rules and what you should expect next.

The U.S. Environmental Protection Agency (“EPA”) issued five final rules regulating the manufacture and distribution of certain persistent, bioaccumulative and toxic (“PBT”) chemicals pursuant to the Toxic Substance Control Act (“TSCA”) in January 2021. These rules became effective on February 5, 2021, and impact chemical and end use product manufacturers, suppliers, wholesalers, and merchants.

EPA is now revisiting the final rules following supply chain pressure. EPA announced a 60-day public comment period beginning March 8, 2021. EPA is seeking additional public comment on the five final rules. Significantly, EPA is exercising enforcement discretion in the form of a

Texas Ends Mask Mandate and Removes all Occupancy Limits

Texas’ Governor marked the state’s Independence Day on March 2, 2021, by issuing an Executive Order that eliminates the statewide face covering mandate, and allows all businesses in Texas to operate at full capacity beginning on March 10, 2021.  Governor Abbott said that the decisions were based on the vaccine rollout and falling infection rates.

Deaths, new cases, and hospitalizations are down; in fact, hospitalizations in Texas are at the lowest levels since October 2020.  Despite interruptions caused by the severe weather over the last few weeks, 6.8% of Texans have been vaccinated, leading Governor Abbott to join others in asserting that the attempts at controlling this virus are improving.  The news comes only a day after the Director of the CDC warned about the possibility of a fourth wave of the virus, especially in light of the spread of several variants.

Key takeaways for businesses:

PFAS Update: Current State-by-State Groundwater Regulations

February 26, 2021


Many states have expressed frustration with the lack of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, and have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards that present significant challenges to impacted industries.  This client alert focuses on the different state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

I. State Regulations

The snapshot provided below is current as of March 1, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North CarolinaPennsylvaniaRhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect later this year, and more state actions, as well as possible federal action, are expected to be announced this year.  All

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

As part of President Biden’s first executive actions, on January 21, 2021, the president ordered the federal Occupational Safety and Health Administration (“OSHA”) to issue new science-based guidance to protect workers and enhance workplace health and safety during the Covid-19 pandemic. In compliance with this executive order, on January 29, 2021, OSHA issued new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks. The guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” (“Guidance”) contains advisory recommendations and reinforces already existing mandatory safety and health standards. This Alert provides an overview of this new federal Guidance and highlights important considerations for employers.

Legal Obligations of Employers in Responding to COVID-19

Throughout the Covid-19 pandemic, OSHA has referenced and leveraged the Occupational Safety and Health Act

California Prop. 65 Warning Requirement for THC Makes CBD, Hemp and Cannabis Products a Target

The California Proposition 65 warning requirement for THC took effect on January 3, making cannabis, hemp and CBD products a likely target for private enforcement actions.

Although under federal law CBD products are allowed to contain up to 0.3 percent THC, or Δ9-Tetrahydrocannabinol, no safe harbor level of exposure to THC has been established under Prop. 65.  That means private enforcers can argue that any detectable amount can subject a product to the Prop. 65 warning requirement.  Companies can work with consultants to develop a safe use determination for THC, but until it is established and accepted, enforcement actions will be a material risk.  Notably, the Prop. 65 listing applies to Δ9-THC, although the Prop. 65 requirements may still be triggered by residual Δ9-THC present in other THC products, like Δ8-THC distillates.

At the same time that THC was added to the Prop. 65 list, California’s Office of Environmental Health

California and New York Roll Back Certain COVID-19 Restrictions

January 28, 2021


In late 2020, many states enacted stay-at-home orders or issued new lockdowns in an effort to curb a perceived risk of elevated infection rates during the holiday season.  With the holidays behind us, and as hospitalizations rates begin to decline, and ICU capacity increases, some states have begun the process of rolling back their more stringent holiday restrictions.

The following is a summary of the steps that California and New York are taking to ease their restrictions.


The Governor announced on Monday, January 25th, that the Regional Stay at Home Order, which went into effect in early December, was being lifted.  The state now goes back to the Blueprint for a Safer Economy Plan that was in place before the Regional Stay at Home Order went into effect.

With the exception of four counties, the entire state is in the Widespread Tier under the plan, which is the most restrictive.

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